Appeal No. UKEAT/0514/09/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 June 2010
	   Judgment handed down on 6 July 2010

Before
THE HONOURABLE MR JUSTICE SILBER
(SITTING ALONE)

MRS S WHITE	APPELLANT

BURTON’S FOODS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR STEPHEN HARDY
(of Counsel)
Instructed by:
Messrs MWR Solicitors
5-7 Cannon Street
Preston
PR1 3PY	
For the Respondent	MR JAMES BOYD
(of Counsel)
Instructed by:
Messrs DWF Solicitors
5 St Paul’s Square
Old Hall Street
Liverpool
L3 9AE	

SUMMARY
EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site.  She brought a claim under the Equal Pay Act 1970 against the respondent comparing her position with that of existing and former production planning managers at other sites.  All four managers fell within the category of junior managers being answerable to their own senior management team in their respective sites.  

The Employment Judge concluded that the Claimant had not satisfied them that she was in “the same employment” as the main comparators for the purposes of section 1(6) of the Equal Pay Act 1970. The Claimant appealed contending that the correct principles had not been applied and that the decision of the Employment Tribunal was perverse.

Held: The appeal was dismissed because:-

(a)	The Employment Judge applied the correct principle of adopting a broad common sense approach applying Leverton v Clwyd CC [1989] ICR 33, 60 per Lord Bridge of Harwich and British Coal Corporation v Smith [1996] ICR 515, 528 per Lord Slynn of Hadley;

(b)	The Employment Judge was entitled to take the view that the terms of the comparators were not broadly similar to those of the Claimant because they were different in respect of holiday pay, notice pay provisions, pay structure, discipline and grievance procedure, collective bargaining and there was no over arching company handbook. No steps had been taken to harmonise terms and conditions across the three sites either collectively or through individual consultation and variation save for the introduction of a standardised appraisal system.  Pay at each site was fixed through local collective agreements or through an internally approved outcome;

(c)	In those circumstances and for those reasons, the claim of perversity had to be rejected as there was nothing approaching the threshold required for a claim of perversity to succeed, namely “an overwhelming case is made out that the Employment Tribunal reached a conclusion which no reasonable tribunal, on a proper appreciation of the law and evidence would have reached” (Statement of Mummery LJ in Yeboah  v Crofton [2002] IRLR 634,643 applied).

THE HONOURABLE MR JUSTICE SILBER
I	Introduction
1.	Mrs Sharon White (“the Claimant”) appeals against a decision of the Manchester Employment Tribunal made on 22 September 2009 at a preliminary hearing holding that the Claimant’s claim of equal pay made against Burton’s Foods Limited (“the Respondent”) pursuant to section 1 of the Equal Pay Act 1970 (“the Act”) was not well-founded and was dismissed.

2.	The Claimant is the Production Planning Manager at the Blackpool site of the Respondent.  It is not in dispute that her selected comparators (who were the Production Planning Managers at the Morton and Llantarnam sites owned by the Respondent) received higher pay.  The case for the Claimant was that they were appropriate comparators as they were in “the same employment” as her.

3.	At the pre-hearing review, the Employment Tribunal concluded that the Claimant had not satisfied them that she was in “the same employment” as her main comparators for the purposes of section 1(6) of the Act which provides, in so far as is material, that:-

“and men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes”.

II	The Decision of the Employment Judge
4.	The Claimant had been employed by the Respondent since May 1984 before becoming Production Planning Manager for the Respondent’s Blackpool site.  As I have explained, she compared her position with that of the existing and former production planning managers at the other two sites but on appeal her counsel stated that the only relevant comparators were Mr Norris and Mr Horrobin who were the Production Planning Managers at the Llantarnam and Morton factory sites respectively.  The Employment Judge accepted that in the Respondent’s organisational hierarchy, all four managers fell within the category of junior managers being answerable to their own senior management team in their respective sites.

5.	The original terms and conditions for employment of the Claimant, Mr Norris and Mr Vernon were produced to the Employment Judge as was the Senior Management Handbook applicable to Mr Horrobin at the Morton site.  It was accepted by the Claimant that her terms and conditions of employment (save for the nature of her role and the amount of her pay) had remained unchanged during the course of her employment.  The Employment Judge found that there was nothing to suggest that the terms and conditions of employment of Mr Norris, Mr Vernon and Mr Horrobin had changed during the course of their employment.

6.	It was found by the Employment Judge that the Claimant’s terms and conditions of employment differed significantly from those of Messrs Norris, Vernon and Horrobin.  She accepted the Respondent’s contention that these differences were due to the fact that each agreement with the named comparator was entered into at different times, with different employers at different locations.  Furthermore, in the cases of the Claimant, of Mr Norris and of Mr Vernon, their employment agreements were entered into before the Respondent acquired their business and their contracts were for positions at different locations.  The Employment Judge found that since 2000, when the three sites came under the common ownership of the Respondent, there had been no steps taken to harmonise terms and conditions across the three sites either collectively or through individual consultation and variation, save with the exception of the introduction of a standardised appraisal system.

7.	The evidence of the Respondent, which was accepted by the Employment Judge, was that individual factory sites continued to maintain control over pay for their junior managers first through local collective agreements at Blackpool in relation to the Claimant and by different local collective agreements in relation to Mr Vernon at Morton and second by awarding pay in accordance with their own internally assessed appraisal outcomes in relation to Mr Norris and Mr Horrobin.

8.	The Employment Judge identified differences in the employment position at each site as that :-
a.	there were no unified disciplinary or grievance procedure with such matters being dealt with at site level in accordance with the site’s procedures;
b.	each site had its own human resources function accountable to that site’s general manager;
c.	there was no company handbook containing any terms and conditions of employment applicable across the sites.
d.	different sites recognised different trade unions for different purposes and collective bargaining agreements differed across different sites with BFAWU being recognised for collective bargaining purposes at Blackpool with the Claimant included for that purpose.  In contrast, the terms and conditions of pay of Mr Horrobin and Mr Norris were not collectively agreed but remained a matter for individual negotiation over which the site general factory manager had ultimate control.  UNITE was recognised for the purposes of negotiating terms and conditions for certain employees at the Morton site which included Mr Vernon;
e.	there were no over-arching collective agreements in place applicable to all sites; and
f.	Mr Norris unlike the other managers was entitled to private health insurance.

9.	The Employment Judge explained that she was “mindful that the burden of proof was on the claimant to satisfy the Tribunal that the claimant and her named comparators were and/or are employed under broadly similar terms”.  She appreciated, from the case law authorities advanced, that “a broad brush approach” should be taken to the issue.  The Employment Judge found that the Claimant was not in “the same employment” as her comparators.

III	The Issues
10.	Mr Stephen Hardy, counsel for the Claimant, contends that the Employment Tribunal erred in interpreting section 1(6) of the Act because if the correct principles had been applied, the Employment Tribunal would have concluded that the Claimant’s employment as compared with that of her selected comparators being Mr Horrobin and Mr Norris were broadly similar and thereby satisfied the test in section 1(6) of the Act.  In the alternative, Mr Hardy contends that the decision of the Employment Tribunal was perverse in that it was made without regard to the arguments and the live witness put before it.

11.	In response, Mr James Boyd, counsel for the Respondent, contends that the Employment Judge directed herself properly and that she applied the correct principles.

IV	Discussion
12.	It is common ground that the approach that should be adopted was as described by Lord Bridge of Harwich in Leverton v Clwyd CC [1989] ICR 33, 60 E when he explained :-

“..So long as industrial tribunals direct themselves correctly in law to make the appropriate broad comparison, it will always be a question of fact for them, in any particular case, to decide whether, as between two different establishments, ‘common terms and conditions of employment observed either generally or for employees of the relevant classes’.”

13.	A similar approach was advocated in British Coal Corporation v Smith [1996] ICR 515, by Lord Slynn of Hadley, who said at page 528g:-

“In any event, it seems to me when dealing with the comparison of terms and conditions the relevant classes having been established, the Tribunal clearly adopted a broad common sense approach which seems to have been in accordance with the speech of Lord Bridge of Harwich [in Leverton]”.

14.	In my view, this is  the approach which the Tribunal adopted because the Employment Judge explained (with emphasis added) that:-

“12 The Employment Judge was mindful that the burden of proof was on the claimant to satisfy the claimant and her named comparators were/are employed under broadly similar terms and the Employment Judge appreciated, from the case law authorities advanced more generally, that, in essence, a broad brush approach be taken to the question”.

15.	The case for the Claimant is that this principle was not applied but I am unable to agree because the Judge noted that the Claimant’s terms and conditions of employment differed significantly from those of each of the comparators because they were different in respect of first  holiday pay, second notice pay provisions, third the pay structure, four the disciplinary and grievance procedure, fifth collective bargaining arrangements and sixth there was no over-arching company hand book containing all the terms and conditions.  These differences are not challenged on this appeal by the Claimant.

16.	The case for the Claimant was that hours of work, and notice of term and contractual provisions were similar but they merely reflected the relevant statutory entitlement while the hours of work were of the Claimant and her named comparators were “broadly similar”.  The Employment Tribunal accepted that the monthly pay period was common to both the Claimant and the comparators but in the view of the Employment Tribunal this was “a feature shared with the significant proportion of the national work force and did not add weight to the claimant’s argument”.  None of these findings have been challenged nor is it suggested that the Employment Judge was not entitled to reject the Claimant’s condition that the pay structure of the named comparators was not a common feature to the Claimant because it derived from local collective bargaining arrangements as well as individual agreements between local site managers and the respective production managers.

17.	In my view, this was a decision that the Employment Tribunal was entitled to reach and, applying the words of Lord Bridge in Leverton.  It must not be forgotten that appeals can only be brought where there is an error of law.  In my view there is nothing approaching an error of law in the approach or the conclusion of the Employment Judge.

18.	Mr Hardy contends that the Employment Judge should have considered each comparator in turn rather than in the global manner which she adopted.  There is no authority or principle which makes that approach mandatory because all that is required is the approach advocated by Lord Bridge and Lord Slynn, which the Employment Judge followed.

19.	In so far as it is contended that the decision was perverse, this submission has to be rejected as this conclusions under appeal do not begin to approach the threshold required for a claim of perversity to succeed, namely that “an overwhelming case is made out that the Employment Tribunal reached a conclusion which no reasonable tribunal, on a proper appreciation of the law and evidence would have reached” as explained by Mummery LJ in Yeboah v Crofton [2002] IRLR 634,643.

V	Conclusion
20.	This appeal must be therefore dismissed.